Blowing Smoke

The valet parking area at the Westin was full, but they took so long to tell me that I felt aggrieved. So I squealed down to the basement of the hotel parking garage on my Firestone-recalled tires, talking on a cell phone that was almost certainly shooting deadly electronic impulses into my brain, then ran up the stairs and grabbed a cup of coffee that would have scarred me for life had it been a scant 60 degrees hotter. I was just in time to catch the opening speech of the Colorado Civil Justice League's debut forum, a speech delivered by Jake Jabs, the furniture magnate whose American Furniture Warehouse home entertainment center stands chipped in my living room and whose recent autobiography, An American Tiger, is such an overstuffed piece that I should demand my $19 back -- or just sue.

Except that I won't sue for that or any of the other petty irritants I encounter each day, and no matter how often you hear about astronomical verdicts for cups of scalding McDonald's coffee or demands that someone stuck in an elevator for a day and a half be compensated $650,000 an hour, neither will most Americans. In fact, the number of personal-injury and tort cases being filed in Colorado these days is down significantly from the early 1990s, and the civil caseload last year was 23,465 cases lower than the state's high in 1988.

But you would not learn this from Jabs. The guiding philosophy today is "If it moves, sue 'em," he pronounced -- and Jabs makes one hell of a moving target, what with all of his TV commercials and his band and his book. In that book -- whose 182 pages include 33 devoted to the American Furniture Warehouse policy manual and another to a reproduction of the tag that explains why the nick belongs in my entertainment center -- Jabs said he recognized the need for a tort-reform group after a former employee sued him for sexual harassment. The judge threw out the case, but not before the Post and local TV stations publicized the "phony accusations," embarrassing and humiliating Jabs and his family -- and also inspiring a flood of letters and calls from people who had gone through similar ordeals. "The hundreds of people who called me have caused me to think about starting a Harassment Victims Advocacy Group," Jabs wrote. "I may yet. I know I would have lots of members. This sexual harassment charge will be with me the rest of my life, just as it will for the hundreds and hundreds of others who have been falsely accused...

"I plan to serve as the new President of the Colorado Civil Justice League, a new organization affiliated with the American Tort Reform Association. Our goal is to create a vigorous agenda to halt this runaway situation. It's costing Americans millions of dollars, not to mention ruining the reputation of individuals and businesses."

And so this past Tuesday, Jabs stood and welcomed CCJL members -- suggested dues $10,000 for corporations with over $1 billion in assets -- to a forum on "Combating Runaway Litigation." None of his trademark animals were present, unless you count numerous sharks in the audience (lawyers in attendance could get continuing legal-education credit) and two tigers on the podium -- one the self-proclaimed "American Tiger," the second Sherman "Tiger" Joyce, president of the Washington, D.C.-based American Tort Reform Association. "We stand ready to work with you," Joyce promised. "Some of the good work that you did is being challenged in the courts. You've got a great team here, and the states are ground zero when it comes to the civil justice system."

The "good work" Joyce referred to was the massive lawsuit-limiting tort-reform package passed by Colorado's General Assembly in 1986, legislation whose prime sponsor was Bill Owens, then a state senator, today the governor of Colorado and himself a keynote speaker at the forum. "Tort reform is one of the big issues of the day," non-attorney Owens pronounced (even if it's barely a blip on the polls measuring voters' concerns), and one of his first actions in office was to appoint a task force to address the "approaching state of crisis in the civil justice system." Over the next four years, he said, he plans to add 25 judges, a 10 percent increase over the current level; other task force recommendations include expanded use of alternative dispute resolution and a specialized commercial track within the current system.

But all of the little cases clogging the courts were not the real issue here. The true culprit was the massive tobacco settlement and what it means for the justice system (not to mention insurance companies). Five years ago, Joyce said, if you'd filled a room with the hundred top trial lawyers in the nation, they all would have laughed at the notion that such a settlement was possible. Today those attorneys could net as much as $11 billion, pointed out Gale Norton, who as Colorado's attorney general had her office work on the case (rather than parcel out the work to private attorneys), and now, as a member of the heavy-duty firm of Brownstein Hyatt Farber, will serve as the CCJL's general counsel. "That settlement showed that litigation is a very powerful weapon," she said, adding that if that weapon were pointed at recreational industries, the "Colorado experience could be destroyed."

Other targeted industries might be gun makers and gun retailers, predicted state senator Mark Hillman, as well as automobiles, fast-food chains (cholesterol can kill, after all), even Hollywood.

Standing under the banner of forum sponsor Marsh -- a company that's part of the Marsh & McLennan conglomerate, whose clients just happen to include Firestone and Nabisco, owner of Philip Morris -- speaker after speaker insisted they were not "shills" for the insurance industry. Instead, Joyce warned of the "meshing of the personal-injury bar with elected officials" (more details at www.triallawyermoney.org), while state representative Doug Dean compared trial lawyers to bounty hunters. "Colorado is losing ground in tort reform," complained representative Tambor Williams. And Colorado must take this seriously, she added, because the national trial lawyers' group has made Colorado one of three states it's targeted for action in 2001.

This came as news to members of the Colorado Trial Lawyers Association, several of whom were seated in the belly of the beast Tuesday morning. In fact, a quick call to the American Trial Lawyers Association revealed that no such three-state hit list exists. But that doesn't mean the trial lawyers can't rise to the occasion when called -- just as the American Tort Reform Association can, and does, push its agenda in different states.

In the just-released The CALA Files: the Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights, Public Citizen and the Center for Justice and Democracy outline how the ATRA has helped build a network of local organizations that "act as mouthpieces for anti-consumer tort law changes." For their report, the two organizations studied eighteen "CALA" groups -- the names are all variations on Citizens Against Lawsuit Abuse -- and found that "large corporations seeking to reduce their liability to consumers created and bankrolled the CALA campaign to manipulate the media, the legislative process, the electoral process and the American public."

Chief among those large corporations was Big Tobacco. One 1995 memo outlined the strategy: "The communication program is intended to enhance our ability to enact favorable legislation at both the federal and state levels. It is also intended to put the trial bar on the defensive, and to improve the legislative climate concerning tort issues, both because of pressure from constituents and through possible electoral changes in the composition of various legislatures. Because these media activities, to be effective, must not be linked to the tobacco industry, we hope that significant industry funding encourages other groups to make similar contributions to support such activities."

Five years later, Colorado has its very own CALA -- the Colorado Civil Justice League -- ready to blow a lot of smoke. "This is about fairness," insisted Richard Westfall, a lawyer formerly with the Colorado attorney general's staff. "The people of Colorado are deeply rooted in fairness."

And with any luck, those people of Colorado -- who elect the legislators and make up the juries -- will be able to continue to decide for themselves when a lawsuit is legitimate and when it's frivolous, rather than have Jabs's group do it for them. Otherwise, they've got a good case for secondhand smoke-blowing.

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